FEDERAL COURT OF AUSTRALIA

Thomson v Orica Australia Pty Ltd (No 2) [2001] FCA 1563

Thomson v Orica Australia Pty Limited

No N 1051 of 2000

Allsop J

26 October 2001

Sydney

REASONS FOR ORDERS

1                     This matter was heard before me in two phases this year in June and in October.  The matter was commenced by an application of a kind required by Order 81 of the Federal Court Rules, that is an application alleging unlawful discrimination.  The  jurisdiction granted to this court to determine such issues arises under a Commonwealth Act being the Human Rights and Equal Opportunity Commission Act 1986.  This court has jurisdiction to hear matters arising under that Act and cognate Commonwealth legislation.

2                     The matter was not commenced by way of a statement of claim:  unfortunately so, because some part of the difficulty which, I think legitimately to a degree, is expressed by the respondent, perhaps would have been obviated if the rules more clearly provided for a document which allowed the proper display of factual matters in dispute, rather than the application in its form under the Rules.  In saying that I make no criticism of either of the parties or their legal representatives.

3                     The matter has a procedural history which has been usefully set out in written submissions that Ms Ronalds has filed.  Perhaps I should add, at this point, that the purpose of today is to discuss any difficulty which may have arisen in conversations I had with counsel at the close of the evidence in the case two weeks ago.  The evidence closed two weeks ago and I re-listed the matter on the following Tuesday, that is, 16 October.  The reason I re-listed the matter will become apparent in a moment.

4                     The procedural history, as largely set out by Ms Ronalds, up to the debate in April of this year about a summary judgment application makes reasonably clear that on the existing application the parties appeared to be directing their views as to the case to complaints of discrimination.  However, it should be noted that on 10 April in discussing the matter before Beaumont J, Ms Eastman who appears for the applicant, Ms Thomson, said at page 15 of the transcript talking of her client and talking of her client's allegations in the case:

She then says "As a result of these changes in my work in effect I was really being squeezed out".

5                     The second part of her claim is that she says she was constructively dismissed.  The reason she was constructively dismissed was because she had taken a period of maternity leave.  At this point there was no pleading by way of a statement of claim, but shortly thereafter at the direction of Beaumont J points of claim were filed to which a defence was filed.

6                     It is important to appreciate the structure of those points of claim because it is my reading of them which has led to perhaps any difficulty that may have arisen.  May I say to both parties that I would rather the difficulty arise now when the evidence has just closed in the case, rather than at some later point.  May I add, by way of comment to that, that principles such as those exhibited in Coulton v Holcombe (1986) 162 CLR 1 and like cases about what can be raised on appeal are not the relevant field of discourse here.

7                     I have completed the evidence but two weeks ago, I am in the process of taking written submissions and we are at a stage of proximity to all the matters of evidence that have been led, such that if there is any difficulty, which I will deal with shortly, then I have difficulty seeing how any matter of concern cannot be efficiently and promptly remedied.

8                     Returning to the points of claim.  Points of claim are pleaded reasonably extensively in 24 paragraphs.  There are claims for what are referred to in the sub-headings as “Pregnancy Discrimination” under sections 7 and 14 of the Sex Discrimination Act 1984 and a sub-heading immediately above paragraph 17 “Sex Discrimination” sections 5 and 14 of the Sex Discrimination Act, and immediately above paragraph 23 “Family Responsibilities” under section 7A and 14 of the Sex Discrimination Act.

9                     Importantly in the document in paragraphs 1 to 11, before the introduction by sub-headings of the relevant Commonwealth legislation, there is a pleading which is to the following effect.  Paragraph 2 pleads that the applicant was employed by the respondent from January 1989 to April 2000.  Paragraph 5 pleads that from December 1998 to April 1999 the applicant was employed as an account manager in a particular division of the respondent and particulars are given of that.

10                  There is, strictly speaking, not a pleading of a contract as one would find it in Bullen and Leake, but as with certain types of contracts, such as insurance contracts and employment contracts, parties very often plead in short form referring to the issue of a policy or the existence of a relationship of employment.  No complaint was taken at any point about the fact that no particular form or term was pleaded, presumably because it was seen as unnecessary.  Nor has it been said that there was any particular term or aspect of a contract of employment which would affect this case.

11                  Paragraph 6 pleads the maternity leave.  Paragraph 7 pleads the fact that the applicant's position was taken by Ms Ferro while she was on maternity leave.  Paragraph 8 then pleads that when the applicant returned to her employment she returned to different duties and responsibilities to those performed prior to her maternity leave and in paragraph 7 particulars are given of that.

12                  Paragraph 9 then pleads that Ms Ferro remained in the same position that she had taken while the applicant was on maternity leave.  Paragraph 10 then pleads that the applicant was not permitted to return to her former duties.  Paragraph 11 then says that on 20 April the applicant accepted the respondent's repudiation of her contract of employment and treated her employment with the respondent as terminated.  No particulars are given of that and in my view a fair reading of it as the conclusion to that part of the points of claim immediately antecedent to the first of the discrimination headings is that what has been left out, strictly speaking, is the phrase commencing the paragraph often used by Sydney pleaders, and that is “in the premises” or “in the premisses”.  That is how I read the points of claim.

13                  The matter proceeded for some days in June and for some days in October.  At the beginning of the resumption of the hearing in October, I had an exchange with Ms Eastman about what the case was about in terms of the applicant's complaints.  The evidence in the case makes plain that, rightly or wrongly, that being a matter for me to decide, Ms Thomson thought she was entitled to have her old job back, if I may use that expression, and there is correspondence in evidence which would indicate a strong view held by her that at the time, that she was entitled to the very job being returned to her, if I may put it that way also.

14                  In the exchange with Ms Eastman on the first day of the resumed week, I put it to her that I had difficulty in thinking that that could be right as a matter of principle unqualified, and I gave an example of a person going on family leave having handled an account of BHP Billiton and being told on return that at the same job level, the same money and the same terms and conditions that person would no longer handle BHP Billiton, but would handle Rio Tinto in doing the same things.  Ms Eastman indicated to me that she agreed that that would not be unlawful discrimination of a kind complained of, but what would be a problem would be having handled BHP Billiton, if the person returning was being given qualitatively a different job.  The transcript will reveal the detail of that exchange.  Certainly that is one aspect of the way the plaintiff's evidence and the applicant's complaints in her evidence manifests itself.  Indeed the whole of the week of the resumed hearing was concerned in significant part with cross-examination and debate about whether Ms Thomson was being given or proposed to be given duties and responsibilities of a lesser degree or quality or standing in the company than those which she had had.  It has always been the respondent's case that there was no such reduction in quality of duty and indeed much of the cross-examination was dealing with the proposition, put time and again by the respondent, that Ms Thomson was being given important and responsible duties, without any diminution of position, without any diminution of pay and indeed that two aspects of the job proposed for her were matters seen to be appropriate to give to her because of her skill and experience.

15                  What happened at the end of the evidence was that in anticipation of written submissions by the parties, on the Friday afternoon, I proceeded to examine the papers in the case and in particular the points of claim with care and it struck me that a fair reading of the points of claim, that being the document together with the application defining the extent of the matter before this court, raised questions of enforcement of rights under Commonwealth law and also a claim for repudiation of a contract as pleaded in paragraph 11.  It being the case, which I have not mentioned, the last paragraph of the pleading states that:

By reason of the conduct of the respondent, the applicant has suffered and will continue to suffer loss and damage.

16                  And particulars are then given referring to the application.

17                  I wanted to be clear about what the issues in this case were.  I had had an exchange with Ms Eastman about this which I will refer to now, in particular since Ms Ronalds places significant reliance on it.  In some exchanges with Ms Eastman on 21 June, I asked her about the existence of any issues than the Commonwealth legislation.  At page 11 of the transcript after Ms Eastman had been going through the legislation in opening, I said:

A yes or no would suffice to this question.  Is there a body of state legislation that we will have to look at that may well be a part of the accrued jurisdiction or is it only the Commonwealth legislation?

18                  Ms Eastman said:

It's only the Commonwealth.  There may be, your Honour, references to relevant State legislation in particular the provisions of the New South Wales Industrial Relations Act which we will refer to in our submissions in looking at perhaps an approach to looking at what less favourable treatment is given what we say are the general standards and expectations for a woman who returns to work after maternity leave, but that's the only relevance.  There is no issue of accrued jurisdiction.

19                  Just pausing there, before continuing.  Ms Ronalds, if I may say so with respect, perfectly fairly says that that last sentence is unqualified.   I think in fairness to Ms Eastman, the question I was asking was about State legislation, although the sentence of her answer is otherwise unqualified.  However, I then went on to say in the context of the baldness of that last statement, I said:

At all is there any contract claim here or is it all under the relevant Act, meaning the Commonwealth Act?

20                  Ms Eastman said:

The applicant has chosen to pursue these claims as a claim of discrimination.  They have been open to her to pursue a claim under the New South Wales Industrial Relations Act under section 106 or other provisions, but you are only looking at this aspect.

21                  She then went on to deal with further matters in relation to the Commonwealth Act.

22                  May I say that when I was dealing with this matter on the Friday afternoon in chambers, and when I raised the matter with Ms Eastman on Tuesday, 16 October, I had in mind that the exchange had really been about the State legislation.  On being reminded, perfectly properly by Ms Ronalds, of the precise terms of the discussion, I think in fairness to Ms Ronalds the exchange did go wider than that.

23                  On 16 October I did not “invite” Ms Eastman to do anything as one paragraph in Ms Ronalds submissions indicates that I did.  What I did with that imperfect recollection of the transcript was to ask Ms Eastman, having reminded myself of what I thought was a fairly clear points of claim, whether there was or was not any contractual claim.  We do not have a transcript of that day.  My recollection of it, (thought perhaps it does not matter) is that there was a confused exchange between Ms Eastman and myself and I do not criticise Ms Eastman by that expression, in which it did appear that her answer to the existence of an accrued contract claim was no. 

24                  I then put it bluntly so that I understood.  What I said to her at that point was if there has been a repudiation of the contract as pleaded in paragraph 11 but there is no breach of the Act (that is the Commonwealth legislation) did her client make a claim for damages, at which point Ms Eastman indicated in the affirmative.  Now, Ms Ronalds says that that indicates a change of position by Ms Eastman.  The difficulty with that proposition is I think the points of claim.  I think the history of the matter does show that to a significant degree the parties were focused on the Commonwealth legislation.  Ms Ronalds says in her submissions that she has done so and she has not understood there to be a contract claim and I think there is some force in the proposition that the exchanges between Ms Eastman and myself on page 11 and 12 of the transcript of 21 June indicate a concentration upon the Commonwealth Act.  However, whether or not it was appreciated, the matter for the purposes of Chapter III and the Judiciary Act 1903 and the matter before me is reflected in the points of claim together with the application.  The parties can of course, amend the scope of the matter, I say of course, perhaps I should say, the parties can, I would have thought, limit the confines of the matter by what they do and what they say.  However, Ms Eastman has unequivocally identified the view that she relies on paragraphs 1 to 11 and paragraph 24 as a contract claim accrued to the federal jurisdiction granted by the Commonwealth legislation.

25                  I do not think it is necessary for the parties or the Court, subject to what the parties wish to do, to ventilate or to take any more time in ventilating what individual counsel or clients thought or did not think about the issues in this case reflected by the points of claim.  As I said earlier, and it is not said by way of criticism of any legal practitioner, it is perhaps unfortunate that cases which necessarily will involve contested matters of fact are not required to be pleaded in the usual way.  The difficulty with points of claim sometimes is that people view them as a hybrid just giving the gist of what the claim is (although these points of claim were pleaded fairly fully).  My view of the points of claim is that they plainly raise a contract claim in their structure and expression and organisation.  Ms Ronalds has indicated that she had not appreciated that in effect, or, to put it more respectfully to her, had taken the view that what had fallen from Ms Eastman in the directions hearings in the summary judgment application and on 21 June had limited the case.  As I said earlier, looking at the transcript and assuming it to be accurate, which I think it is, I think Ms Ronalds was entitled on 21 June to take a view that there was not a contract account separately from the Commonwealth legislation.  However, there has been expressed on a number of occasions (the first relevantly that I have indicated being 10 April before the points of claim were filed) clear discussion about constructive dismissal and I refer to the extract that I read earlier about “squeezing out”.

26                  Ms Ronalds says in her written submissions that this has always been “in the context of the Commonwealth legislation”.  Accepting that for the moment, I have real difficulty in seeing (a) what the content of that expression is and (b) how it makes any real difference.  It is undoubted that this case has been about the following factual and legal integers about which the parties have devoted a significant amount of energy.  First, the applicant was an employee.  There is no debate about that, the personnel file is in the bundle of documents and her employment history has been given.

27                  Secondly, in the months leading up to her taking maternity leave the applicant had a certain group of responsibilities and tasks which had been the subject of close attention because they are the comparative or control against which her later treatment is sought to be judged.  The applicant's claim is that she had a certain position and a certain group of responsibilities and tasks; she took maternity leave and she came back to something about which she wishes to complain not in absolute terms but in comparative terms. 

28                  Ms Thompson indicated in January 2000 a desire to return to work, identifying a date for her return.  The evidence canvassed in great detail what she was or was not told about what she was coming back to, what she should or should not have been told about what she was coming back to, what was done by Mr Majer and others in preparation for her return, what was proposed to be done upon her return, what was definite about it, what was not definite about it, and why it was or why it was not any diminution in status or responsibility.  All this was clearly ventilated, from the point of view of the applicant, to mount a case that what happened to her or what was proposed to happen to her on her return was, in neutral terms, a demotion or less favourable treatment.

29                  From the point of view of the respondent, what was propounded and vigorously debated during the course of cross-examination was that there was no fundamental change to what was being proposed and that indeed, as I said earlier, Ms Thomson's qualities called for some aspects of what was proposed to be done with and by her.  I refer in particular to what was said to be the important growth opportunities in relation to the PET products, the company having apparently recently procured a reliable and cheap source of resin for that, and for the growth in sodium metasilicate.

30                  Both these matters, if I may say without precise attendance to the terms of the evidence, were discussed by the witnesses in terms of important aspects for the company to be done which either required someone of Ms Thomson's experience, or at least Ms Thomson's experience was of an advantage in developing those opportunities.  The circumstances and the rights and wrongs of what was proposed, what was to be done with her, and what was said to her as to what would be done with her, and the legitimacy of Ms Thomson, if I may use the expression without disrespect to her, or anyone, in effect of packing her bags and not going back to the office, was a fundamental question debated before me.

31                  Those things were debated in the context, in significant respects, of a comparison between what she had before she went on maternity leave and what she was offered after she came back.  Largely from that comparison it is then said that I should infer certain things about the operation of the Commonwealth legislation. 

32                  In those circumstances, for my part, I do have a real difficulty in seeing any prejudice or difficulty.  Assuming as I do, and I do not say that disrespectfully of Ms Ronalds, I accept what she says, taking the view, or assuming, that Ms Eastman has adopted a position somewhat different from that which she previously adopted, and leaving aside debate about that, and accepting that is how Ms Ronalds has viewed the matter and now views the matter, I have real difficulty in seeing how the case would have been any different or run differently.

33                  However, Ms Ronalds in her written submissions has indicated or said that her client is seriously disadvantaged (see paragraph 3 of her submissions).  As I indicated earlier, without disrespect to Ms Ronalds, I have real difficulty with that, as long as an opportunity for reflection is given.  The parties have now had two weeks to consider this issue.  Ms Ronalds deals with the question of the future steps in paragraph 31 onwards in her submissions.  It is indicated in paragraph 32 that the approach of the respondent would have been different in a number of ways.  Some of these ways are merely speculative.  It is said that it is not possible to re-write the many steps taken.  As a general proposition when there is a perceived change that sort of matter can always be said to have, and in one sense at one level of generality always has, validity.  One cannot recreate reality, and if one has taken a view about something, it may be impossible to precisely put oneself back in a hypothetical universe of behaviour.  However, we are not on appeal two years later.  The evidence closed two weeks ago with this issue being raised very shortly thereafter.  Without being overly repetitious, the context of it is not a radical change in a new case.  The context is, the points of claim as they are drafted, the notion of a constructive dismissal by reason of a change of duties and responsibilities required, and if there is a change or has been a change, it has been an earlier disavowal and a later avowal of a legal framework for the placement of identical facts or what the applicant at least sees as identical facts.

34                  With great respect to Ms Ronalds, I think the submissions about this prejudice are far too general.  There was one witness called for the applicant, that is the applicant, and she was cross-examined.  That cross-examination occurred in June.  Ms Ronalds called a number of people on affidavit.  As I said earlier, the precise terms of the contract were not in issue, and it may be possible that the nature of the contract somehow bears on this question of a constructive dismissal and a breach of common law that does not bear on the case under the Commonwealth legislation and a constructive dismissal in that context.

35                  However, the parties, as I said earlier, litigated at great length the rights and wrongs of Ms Thomson’s treatment in 2000 in a comparative way.  I do have real difficulty in seeing what further evidence could have been led or might be led or what further cross-examination could or would have taken place of Ms Thompson in the context of a repudiation in contract and a claim for damages in contrast to a repudiation of the employment contract in the context of the Commonwealth legislation.

36                  In paragraphs 35 and following, it is said that further analysis and legal analysis and new evidence may or may not be necessary.  One of the reasons that I invited the parties to come back today was to tell me what would be needed if there was something.  Both counsel are experienced.  They have, if I may respectfully say so, skilled and competent attorneys.  Both clients are fortunate in that regard.  We have now had two weeks since the evidence closed and about 10 or 11 days since this issue arose.  With respect, I would have expected something more particular.  However, I do not wish to be over critical in that respect.

37                  I do not have any application before me by Ms Eastman to amend her points of claim.  From what I have indicated earlier, my view is that quite clearly on their face, paragraphs 1 to 11 and 24 raise a contract claim and, as I have said earlier, that is the reason I raised the matter with the parties.  If Ms Ronalds has a difficulty with the structure of paragraphs 1 to 11 and the particulars in them, and that is not solved by the reading in paragraph 11 of the words "in the premises", at the beginning of the paragraph, then particulars should be sought and I propose to direct that they be sought on or before Tuesday afternoon next week and I direct they be answered on or before Friday of next week.  If there is a difficulty with their nature then the matter can be relisted.

38                  As I have indicated, I have great difficulty in seeing how the case could possibly have been conducted differently or in any likelihood have been conducted differently.  However, I am not running the case.  What I propose to do in addition to those directions about particulars, is to order that Ms Ronalds have a period from today and from next Friday, that I think is more than sufficient (but I will hear her if there is a difficulty) to consider any aspect of the law or the evidence as necessary and to adduce any additional evidence that she wishes to say is appropriate to paragraphs 1 to 11 of the points of claim and paragraph 24 – not the damages, of course, but paragraph 24 as indicative of a claim for damages – that she says must now be led or she now wants to lead which was not appropriate to be led in the context of a case involving constructive dismissal in the context of the Commonwealth Act and to identify within a period whether or not, for the same reason, she wishes to put any further cross-examination to Ms Thompson.

39                  I propose that that period be concurrent with the putting of the written submissions in answer to the applicants.  I do that for two reasons.  One, to keep that process alive and so at least that part of the case, if it is a part of the case, is completed.  Secondly, I think it is a necessary correlative of the task of assessing if there is anything additional and I think that task will actually be sharpened by Ms Ronalds having to deal with the existing case, if one sees them as different.  What I propose is that it be 28 days from today and 21 days from next Friday.

40                  In the light of what I have said and the lack of desire of either counsel to say anything further in relation to the matter, what I propose to order is as follows.  That if the respondent has a request for further and better particulars of paragraphs 1-11 and 24 of the points of claim such particulars should be served upon the applicant's solicitors and sent to my associate by facsimile on or before 4.30 pm on Tuesday, 30 October and, subject to any appropriate objection raised in any relisting, those particulars are to be answered on or before 4.30 pm on Friday, 2 November and to be served on or before 4.30 pm on Friday, the 2nd, and sent to my associate by facsimile.

41                  If it be the case that the respondent is of the view that the existence of a contract ground in paragraphs 1-11 and 24 of the points of claim would have led to any evidence being led that was not otherwise led in the case as run, that evidence should be filed and served on or before Friday 23 November and if it be the case that by reason of a perceived change in the case Ms Thompson is sought to be cross examined again, notice should be given on or before Friday the 23rd. 

42                  Neither of those grants of leave should be viewed as open or plenary.  The fact that the evidence is filed and the indication of a cross examination is given will lead to my examining the matter and seeing what it is that is said to be different and I will at that point (and if necessary I will hear counsel) decide whether there is a real problem that has been caused.

Associate:

Dated:              7 November 2001